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Karnataka High Court · body

2011 DIGILAW 631 (KAR)

State by Police Inspector v. V. Nagendrappa, FDA

2011-06-21

V.JAGANNATHAN

body2011
JUDGMENT V. Jagannathan, J.— This criminal appeal is by the Lokayuktha Police. Chitradurga, calling in question the judgment of acquittal passed by the trial court in favour of the Respondent-accused. The trial court acquitted the Respondent, who was charged with the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act. 1988. 2. The prosecution case, in short, is that the Respondent-accused, while working as an F.D.A. in the office of the Deputy Commissioner, Chitradurga demanded from the complainant. Rs.1,000/- as bribe amount and this was towards doing a favour to the complainant by forwarding the complainant's departmental inquiry report prepared by the Tahasildar to the Directorate of Economics and Statistics, Bangalore, in respect of promotion of the complainant. It is the case of the prosecution that on 13.9.2001, at about 4.15 p.m. in the office of the accused, the accused demanded and accepted bribe amount of Rs.1.000/- from complainant Manjunatha Swamy. 3. Based on the complaint lodged by P.W. 1 with the Lokayuktha Police as per Ex.P-1, investigation was taken up, which included preparing the entrustment mahazar Ex.P-13, and this was followed by the trap being successful according to the prosecution leading to the trap mahazar also being drawn as per Ex.P-2. On completion of the investigation, which also included obtaining the sanction order as per Ex.P-29, charge sheet was submitted against the accused. 4. Following the accused not pleading guilty, the trial court called upon the prosecution to prove its case and P.Ws. 1 to 14 were examined apart from 29 documents being marked on the side of the prosecution and M.Os. 1 to 13 also being marked during the course of the evidence. The accused statement was recorded and the accused gave his written explanation as per Ex.P-12. The accused did not lead any defence evidence except marking certain portion of the statement of P.W. 10 as per Ex.D-1. 5. 1 to 13 also being marked during the course of the evidence. The accused statement was recorded and the accused gave his written explanation as per Ex.P-12. The accused did not lead any defence evidence except marking certain portion of the statement of P.W. 10 as per Ex.D-1. 5. The learned trial judge, after appreciating the evidence on record, held that the possibility of the complainant having forcibly thrusting the amount into the pocket of the accused cannot be ruled out and even before the accused could take out the money and give it back, the raiding officials came and caught hold of the accused and taking note of the evidence of P.Ws.6 and 11 being not helpful to the prosecution case, the trial court opined that there was no corroboration to support the self-serving statement of P.W. 1 complainant. It is on this reasoning, on the basis of the evidence analysis, the learned trial judge passed the order of acquittal. 6. I have heard learned Counsel Shri Rajendra Reddy for the Appellant Lokayuktha Police and learned Counsel Shri C.H. Jadhav for the Respondent and perused the records of this case. 7. The submission of the learned Counsel for the Appellant is that the testimony of P.W.1 complainant is supported by the evidence of the I.O. and the trial court, therefore, could not have rejected the prosecution evidence solely on the ground of come discrepancies being found in the evidence of P.W.1 and P.W.11 shadow witness also having not supported the prosecution case in part. 8. Referring to the evidence of P.W.1 in particular and the amount of bribe being recovered from the pocket of the accused as could be seen from the trap mahazar, it is submitted that the prosecution has brought home the guilt of the accused beyond all reasonable doubt. The fact that the report pertaining to P.W. 1 was with the accused is also proved through the testimony of the I.O. apart from the evidence of P.W.6. As such, the demand and acceptance of the bribe amount by the accused is established beyond reasonable doubt. The trial court was in error in disbelieving the evidence of the material witnesses. 9. As such, the demand and acceptance of the bribe amount by the accused is established beyond reasonable doubt. The trial court was in error in disbelieving the evidence of the material witnesses. 9. It is also contended by the learned Counsel for the Appellant-Lokayuktha Police that corroboration is not a must in every case and direct evidence alone need not be placed, but if the evidence of the complainant is supported by the other circumstantial evidence, the courts would be justified in passing the conviction. 10. As far as the character of the complainant is concerned, the submission made is that, if is not relevant in a criminal case. The above submissions are sought to be supported by the learned Counsel for the Appellant-Lokayuktha Police by relying on the decisions reported in Ramesh Kumar Gupta Vs. State of Madhya Pradesh, AIR 1995 SC 2121 and Ram Kishan Vs. State of Punjab, (1995) CriLJ 2892 . It is, therefore, argued that, on the basis of the oral evidence of the complainant i.e., P.W.1, and the police officer, the trial court ought to have convicted the Respondent as there is circumstantial evidence consistent with the guilt of the accused. On these grounds, the learned Counsel for the Appellant-Lokayuktha Police sought for the judgment of acquittal being set aside and the Respondent be convicted for the offences alleged against him. 11. On the other hand, the submission of the learned Counsel for the Respondent, at the outset, is that, as this Court is considering an appeal against the judgment of acquittal passed by the trial court, this Court cannot interfere with the order of acquittal, if the view taken by the trial court is a possible view emerging from the evidence on record it is his contention that the view taken by the trial court is consistent with the evidence on record. 12. Elaborating his submissions, the learned Counsel for the Respondent referred to the evidence of P.W.1 complainant and argued that a careful scrutiny of the evidence of the complainant, would go to show that the bribe amount was not demanded by the accused but, on the other hand, the complainant forcibly put the amount into the shirt pocket of the accused and even before the accused could take out: the amount and give it back to the complainant, the Lokayuktha police came and caught hold of the accused. It is also pointed out from the evidence of P.W. 1 that one Thimmanna was also present when the Lokayuktha police came and the said official even told the Lokayuktha police not to bring pressure on the accused and make the accused to take out money from his pocket and, in this connection, there was also protest by the said official Thimmanna. 13. Apart from referring to the above evidence of P.W.1, it is argued that, it is unlikely that the accused would have taken the bribe amount in the office when the accused had opportunity to take the amount in the canteen, where the accused had gone to take coffee, followed by the complainant. As there was only two or three persons in the canteen, the accused, if at all wanted to take the bribe amount, would have demanded and accepted the same in the hotel instead of coming to the office and accept the bribe amount. This itself goes to show that the testimony of P.W. 1 is not very convincing with regard to the demand and acceptance of bribe amount on the part of the accused. 14. The learned Counsel for the Respondent further argued that the shadow witness P.W. 11 has not supported the prosecution case as it has come in the evidence of the said witness that he was standing near the door of the office of the accused and did not hear what transpired between the complainant and the accused and did not even notice the amount being paid by the complainant to the accused. On the other hand, the evidence of P.W. 11 goes to show that it was the complainant who had forcibly put the amount into the shirt pocket of the accused without the accused being aware of the said fact. As such, the trial court rightly refused to rely on the testimony of P.Ws.1, 11 and other official witnesses. 15. It is also pointed out by the learned Counsel for the Respondent that the accused never asked the complainant to follow him to the hotel but, on the other hand, the complainant volunteered to go behind the accused and without the amount being demanded by the accused, the complainant forcibly put the amount into the shirt pocket of the accused. It is also pointed out by the learned Counsel for the Respondent that the accused never asked the complainant to follow him to the hotel but, on the other hand, the complainant volunteered to go behind the accused and without the amount being demanded by the accused, the complainant forcibly put the amount into the shirt pocket of the accused. The fact that the hands of the accused were not immersed in the chemical solution and there being no evidence to show that the hand wash was positive, it is therefore contended by the learned Counsel for the Respondent that the possibility of the complainant forcibly putting the amount into the shirt pocket of the accused cannot be ruled out. This conclusion is sought to be supported by referring to the explanation given by the accused as per Ex.P-12. 16. The trial court, therefore, took all these factors into consideration and also has observed that the conduct of the accused was also not one that is usually found in cases of persons who accept the bribe amount. There was no reaction from the accused, which would normally be seen where a person who accepts the bribe amount when confronted by the Lokayuktha police. The accused was not perturbed but, on the other hand, he was found to be very calm and in a composed manner and this goes to show that the accused was unaware of the bribe amount being put into his shirt pocket by the complainant. Therefore, the evidence on the whole gives rise to take the view that the complainant might have forcibly put the amount into the shirt pocket of the accused and the accused being totally unaware of the same. 17. Since the testimony of P.W.1 is not supported by that of the shadow witness P.W. 11, the trial court rightly refused to rely on the evidence of P.W.1 complainant and accordingly the accused was acquitted. The learned Counsel referred to the decision of this Court to contend that it would be unsafe to rely on the uncorroborated testimony of the complainant to base a conviction. The ruling referred to is reported in 2006 (3) KCCR 1422 Manjunath Basappa Basavamurthy v. State of Karnataka. The learned Counsel referred to the decision of this Court to contend that it would be unsafe to rely on the uncorroborated testimony of the complainant to base a conviction. The ruling referred to is reported in 2006 (3) KCCR 1422 Manjunath Basappa Basavamurthy v. State of Karnataka. The Apex Court decision in the case of V. Venkatasubbarao v. State, reported in 2007 (1) KLJ 227, was also pressed into service by the learned Counsel for the Respondent to content that, where two views are possible, the appellate court should not ordinarily interfere with the judgment of acquittal. 18. In the light of the aforesaid submissions put forward and also after going through the decisions cited and the evidence on record, whether the judgment of acquittal passed by the trial court can be said to be unsustainable in law is the point for consideration. 19. As has been rightly submitted by the learned Counsel for the Respondent, when two views are possible from the evidence on record and the trial court accepts the view which ultimately is in favour of the accused, this Court, while sitting in appeal, cannot interfere with the view taken by the trial court merely because another view is also possible on the evidence on record. If the view taken by the trial court is to be interfered with, then, this Court will have to hold that the trial court's view is not possible from the evidence on record. It is with this principle in view, the evidence will have to be assessed. 20. P.W. 1 is the complainant and he has deposed in his examination-in-chief that he went and met the accused in his office on 13.9.2001 at around 3.00 p.m. and in the course of his evidence, he has stated that after reaching the office of the accused, he spoke to the accused for about five minutes and asked the accused to send the report, but the accused went out of the office and P.W.1 followed the accused towards the canteen. Thereafter, the complainant told the accused that it would not be possible for him to come again and again and the accused then asked him to put the notes in the pocket the accused and accordingly, the complainant kept the notes which were smeared with the powder into the shirt pocket of the accused and this was around 4.00 p.m. Thereafter, the complainant gave signal to the Lokayuktha Police, who came and the accused was asked to take out the amount of Rs.1,000/- from his pocket which he did and then, the shirt of the accused was also seized and afterwards, the accused was questioned about the amount and the accused replied by saying that he did not demand any amount and the money was kept forcibly by the complainant into the pocket of the accused. P.W.1 has admitted this fact at paragraph-14 of his evidence. 21. During the course of his cross-examination, P.W. 1 has stated that, number of persons will gather in front of the office of the accused and near the canteen there were only two or three persons. P.W. 1 has also admitted that, when the accused went to take the coffee, he did not ask the complainant to follow him, but the complainant volunteered to go behind the accused and both of them had free talk at the hotel. The witness has also admitted in the course of his cross-examination that he put the amount into the pocket of the accused thinking that, by doing so, the accused might do the work of the complainant. The witness has further admitted in his cross-examination that, when the police caught hold of the accused, the accused did not show any sign of fear and one Thimmanna, F.D.A. in the Deputy Commissioner's office, also protested when the Lokayuktha Police brought pressure on the accused to take out the amount from the pocket. 22. The witness has further admitted in his cross-examination that, when the police caught hold of the accused, the accused did not show any sign of fear and one Thimmanna, F.D.A. in the Deputy Commissioner's office, also protested when the Lokayuktha Police brought pressure on the accused to take out the amount from the pocket. 22. Thus, the evidence of P.W.1 gives an impression that there was no demand made by the accused at any point of time and the money was put into the shirt pocket of the accused by the complainant, if at all the accused was to demand the bribe amount from the complainant, there was every opportunity for the accused to do so when he and the complainant had been to the hotel to take coffee as there were only two or three persons present in the canteen and there was no necessity for the accused to accept the bribe amount in the office, where number of persons will be present. 23. P.W. 11 is the shadow witness and in the course of examination-in-chief itself, this witness has stated that he stood near the door of the office of the accused and did not notice what transpired between the accused and the complainant. The witness has also stated that the complainant returned and informed the shadow witness that the complainant had kept the amount in the shirt pocket of the accused. Even in the course of his cross-examination, P.W. 11 has stated that it is not true that he was present when the complainant kept the amount in the pocket of the accused. Thus, the evidence of P.W. 11 is not of much use to the prosecution nor can it be said that his testimony in any way corroborates the complainant's evidence. 24. Another important aspect to be noticed from the evidence of P.W. 11 is that, the complainant did not tell him that the accused asked the money to be given and that the money to be kept in the pocket of the accused but, on the other hand, what was told by the complainant to the shadow witness was that the complainant himself kept the amount in the pocket of the accused. 25. Apart from the aforesaid evidence of P.W.1, which is not being supported by P.W. 11, there is also the written explanation given by the accused as per Ex.P-12. 25. Apart from the aforesaid evidence of P.W.1, which is not being supported by P.W. 11, there is also the written explanation given by the accused as per Ex.P-12. In the written explanation, the accused has stated that, when he came back to his office from the hotel, the complainant suddenly thrust something into his shirt pocket and as he tried to examine the file that was on the table in front of his seat, the Lokayuktha Police arrived within no time and caught hold of him. The accused has given his explanation to the effect that the act of the complainant was one of premeditated one and the accused never demanded any bribe amount from the complainant. 26. It is on the basis of the aforesaid evidence on record, the learned trial judge took the view that the prosecution case that the accused demanded and accepted the bribe amount from the complainant cannot be accepted. Moreover, the conduct of the accused was also not of such a nature which would give rise to the inference that the accused, in all probability, might have accepted the bribe amount but on the other hand, the unperturbed mental condition of the accused and his calm and composed attitude, therefore, was taken note of by the trial court to hold the possibility that the accused might be unaware of the amount being forcibly put into his pocket by the complainant. It is on this reasoning, the trial court thought it fit to acquit the accused. 27. In the case of V. Venkatasubbarao v. State, supra, the Apex Court has held that, where there are two views possible, the appellate court need not ordinarily interfere with the judgment of acquittal and it is incumbent on the appellate court while reversing the judgment of acquittal to show that no two views are possible. 27. In the case of V. Venkatasubbarao v. State, supra, the Apex Court has held that, where there are two views possible, the appellate court need not ordinarily interfere with the judgment of acquittal and it is incumbent on the appellate court while reversing the judgment of acquittal to show that no two views are possible. If the aforesaid test is applied to the case on hand, it cannot be said that the evidence on record permits only one view of the matter but, on the other hand, the fact that the shadow witness did not support the prosecution case and the complainant's evidence lacked corroboration and the further fact that, throughout in his evidence P.W. 1 was sticking on to his version that it was he, who kept the amount in the shirt pocket of the accused and also the conduct of the accused and his explanation given as per Ex.P-12, all would go to show that the evidence on record also gives rise to take the view that the accused never demanded any bribe amount but, on the other hand, it was the complainant who forcibly kept the amount in the shirt pocket of the accused. 28. Though the learned Counsel for the Appellant-Lokayuktha Police relied on the two decisions referred to earlier to contend that corroboration is not necessary and the evidence of the complainant and the police officials coupled with circumstantial evidence can be accepted to base conviction, in the instant case, the circumstantial evidence does not give room to accept the version spoken to by P.W.1. Therefore, the said rulings are not applicable to the case on hand. 29. A learned Single Judge of this Court, in the case of Manjunath Basappa Basavamurthy, supra, has held that it would not be safe to base conviction on the uncorroborated evidence of the complainant. The above ruling is applicable to the present case. 30. For the aforesaid reasons. I do not see any error being committed by the trial court in acquitting the accused and, as such, the judgment of acquittal does not call for any interference. Accordingly, the appeal is dismissed.